Estate of Perry v. Wenzel
| Citation | 872 F.3d 439 |
| Decision Date | 18 September 2017 |
| Docket Number | Nos. 16-2353 and 16-3130.,s. 16-2353 and 16-3130. |
| Parties | ESTATE OF James Franklin PERRY, et al., Plaintiffs-Appellants, v. Cheryl WENZEL, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
David J. Lang, Attorney, JUDGE, LANG & KATERS, LLC, Wauwatosa, WI, Robert Edward Barnes, Attorney, BARNES LAW, Los Angeles, CA, Nathaniel Cade, Jr., Attorney, CADE LAW LLC, Milwaukee, WI, James J. Gende, II, Attorney, GENDE LAW OFFICES, S.C., Pewaukee, WI, for Plaintiffs-Appellants (Case No. 16-2353).
Andrew A. Jones, Attorney, HUSCH BLACKWELL LLP, Milwaukee, WI, for Defendants-Appellees Cheryl Wenzel, Deputy Kickbush, Nicole Virgo, Tina Watts, Fatrena Hale, Sergeant (Case No. 16-2353).
Susan E. Lappen, Attorney, MILWAUKEE CITY ATTORNEY'S OFFICE, Milwaukee, WI, for Defendant-Appellee Richard Lopez.
David J. Lang, Attorney, JUDGE, LANG & KATERS, LLC, Wauwatosa, WI, Nathaniel Cade, Jr., Attorney, CADE LAW LLC, Milwaukee, WI, James J. Gende, II, Attorney, GENDE LAW OFFICES, S.C., Pewaukee, WI, for Plaintiffs-Appellants (Case No. 16-3130).
Charles H. Bohl, Andrew A. Jones, Attorneys, HUSCH BLACKWELL LLP, Milwaukee, WI, for Defendants-Appellees Cheryl Wenzel, Deputy Kickbush, Nicole Virgo, Tina Watts (Case No. 16-3130).
Before Posner,* Manion, and Williams, Circuit Judges.
James Franklin Perry died on the floor of the Milwaukee County Criminal Justice Facility less than 24 hours after Milwaukee City police officers arrested him. Shortly after he was arrested, Perry suffered a seizure. The City transported him to the hospital where he received treatment. But, after he returned to the City jail, the City failed to provide Perry with medical care even though he displayed signs of deteriorating health. Instead, they shackled him and placed a spit mask over his face. The City officers ignored his cries for help, his complaints that he could not breathe, and transferred him to the County's Criminal Justice Facility.
After arriving at the County's Criminal Justice Facility, the County nurses decided that Perry was medically unfit to be booked into the jail. Yet, they provided him with no medical care and failed to remove the spit mask, which was seeping blood. When a nurse finally removed the spit mask, it was clear that Perry was no longer breathing. Although emergency efforts were taken, they were unsuccessful and Perry died on the County facility's floor. Perry's estate and his minor son (to whom we will collectively refer to as "Perry") brought suit against a number of police and corrections officers and the County's nurses pursuant to 42 U.S.C. § 1983, alleging that the failure to provide Perry with any medical care while he was in their custody violated his constitutional rights. Perry also brought a Monell claim against the City, alleging that it had a de facto policy of failing to investigate in custody deaths and ignoring medical complaints made by its detainees. Lastly, Perry brought state law claims against the individual defendants. The defendants filed for summary judgment, which the district court granted on all claims.
On appeal, Perry contends that the district court improperly weighed the evidence and ignored factual disputes on his § 1983 claim. We agree. On this record, which includes surveillance footage from both the City and County facilities, a jury could conclude that Perry is entitled to relief on his § 1983 claims.
The defendants contend that even if the district court erred by improperly weighing the evidence regarding Perry's § 1983 claims, it properly concluded that they were entitled to qualified immunity. We disagree, because in 2010, it was clearly established that a detainee such as Perry was entitled to objectively reasonable medical care and failing to provide any medical care in light of a serious medical need was objectively unreasonable. As a result, qualified immunity is not a bar to Perry's suit. But, we agree with the district court that Perry's Monell claim is not viable because he has failed to adequately support these claims with admissible evidence.
Finally, Perry argues that the district court improperly concluded that the defendants were entitled to governmental immunity on his state-law claims of negligence and wrongful death. We agree, in part. The district court erred when it determined that the defendant nurses were entitled to immunity, because under Wisconsin law, the medical discretion exception to governmental immunity applies to their actions. But, we find that the officer defendants were entitled to immunity, because the medical discretion exception is narrow and does not extend to police or correctional officers.
Because Perry appeals from a grant of summary judgment against him, we construe the evidence and take all reasonable inferences in his favor. See e.g. , Ortiz v. City of Chi. , 656 F.3d 523, 527 (7th Cir. 2011).
Shortly after 2:00 a.m. on September 13, 2010, Perry was arrested by Milwaukee police officers after a traffic stop and he was transported to the City's Prisoner Processing Section ("PPS"), where he was processed. As part of this processing, at approximately 5:45 a.m., an initial medical intake screening interview was conducted. The Medical Receiving Screening Form from that interview indicates that Perry told the officer conducting the interview that he suffered from seizures as a result of a previous head injury
and that his seizures were treated twice a day with medication. Perry also stated that he had not taken his medication the afternoon before. Even though he had not taken his medication, the City did not give or get him any medication.
After being screened and disclosing his medical condition to the officers, Perry was placed in a large holding cell. This cell—known as "the bullpen"—was capable of holding up to 150 detainees at a time. In the bullpen, approximately 12 hours after he was arrested, Perry had a seizure. During the seizure, Perry struck his head on the concrete floor. Afterwards, Perry was able to communicate and was cooperative with officers. The Milwaukee Fire Department was summoned, and emergency medical technicians attended to Perry's medical needs in the PPS.
Perry was then transported by private ambulance to the Aurora Sinai Medical Center with Officer Corey Kroes while his partner, Officer Crystal Jacks, followed behind in a police car. In the ambulance, Perry was awake, but appeared tired and did not talk very much. After arriving at the hospital, Perry was cooperative with medical professionals and was able to answer their questions.
The two officers remained with Perry while he was treated in the emergency room. Shortly after arriving, Perry informed the officers and hospital personnel that he had to use the bathroom to have a bowel movement. He was able to slowly walk to the bathroom on his own. He was neither wobbly nor unsteady. He also walked back to his bed on his own. But, after returning from the bathroom, he had at least two more seizures. According to Officer Kroes, after each seizure, Perry became more tired, weak, and less responsive. To treat his seizures, Perry was given Dilantin
, a drug used to prevent seizures, and Ativan, a sedative also used to treat seizures. Perry began to mumble, occasionally screamed out, and began to drool.
Both Officers Kroes and Jacks were concerned about Perry's condition and why he did not seem to be improving. Officer Jacks expressed her concern to the hospital medical staff, who told her that his condition had changed because of the medication he had been given. But a doctor said that Perry could stay in the emergency room a short time longer so that he could rest. So, the officers stayed in the hospital for another 30 minutes. The officers also insist that the message from the medical staff was clear: Perry's drowsy condition was because of the medication and that he was going to be released. In fact, according to Officer Kroes, one of the nurses told him that Perry was simply faking his condition.
Officer Jacks was concerned that Perry was going to be released, so she called the PPS supervisor, Lieutenant Karl Robbins. She told him that although Perry attempted to dress himself to leave the hospital, he was unable to do so on his own. She also told him that Perry was unable to walk. Officer Jacks asked whether they should return Perry to the PPS, or take him to the County's Criminal Justice Facility ("CJF"), where nurses were available. Lieutenant Robbins instructed the officers to return to the PPS with Perry and that he could not be transferred to the CJF since his paperwork was not complete. According to Officer Kroes, Lieutenant Robbins told them that they somehow had to get Perry back to the PPS, even if it meant calling for extra officers to come help carry him. However, Lieutenant Robbins contends that he never received a report that Perry's condition had deteriorated. Instead, he asserts that he was told that Perry was not cooperating at the hospital.
Nonetheless, at approximately 6:45 p.m., Perry was discharged. Although his medical record states that he was "alert and appropriate upon [discharge]," according to the officers, Perry was unable to walk on his own and was unsteady on his feet. As a result, he was unable to get into a wheelchair on his own, and the officers had to assist him in doing so. The officers placed Perry, handcuffed, in the back seat of their police vehicle. Officer Jacks placed him in his seat belt. Perry was not combative or otherwise uncooperative. The two officers then drove Perry back to the PPS, which was only minutes away from the hospital.
The hospital provided the officers with Perry's discharge paperwork. This paperwork noted that Perry had suffered from a seizure and indicated that the most common cause of a recurrent seizure was a missed dose of seizure medication. Additionally, the paperwork identified side effects...
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